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I write again about the non-white collar case of Dominique Strauss-Kahn because that case in many ways provides a primer on many criminal justice issues which arise in white-collar cases.

The principal issue on the table is the most basic one in all criminal cases – whether or not to prosecute. That decision has been recently discussed by my colleague, Professor Ellen Podgor, with respect to the Roger Clemens here and AIG Five here cases. The issues there are somewhat, but not totally, different from those here in that they involve a decision after a mistrial and appellate reversal, respectively. In Strauss-Kahn, while there has been an indictment, the trial is far off. Additionally, that indictment, as a result of the District Attorney’s aggressive and short-sighted decision to insist initially that Strauss-Kahn be held without bail, was hurriedly returned without sufficient time for the prosecutor to investigate at least the background of the complaining witness.

Her story appears to be coherent, corroborated by clear evidence of sexual conduct between her and Strauss-Kahn, some evidence of force, and a timely outcry. On the other hand, as the District Attorney revealed to the defense (and the world) by his extremely unusual early disclosure of Brady material, the complaining witness has given arguably inconsistent statements as to what she did around the time of the event, had apparently discussed with a friend receiving some monetary benefit from pursuing the case, and had lied on an application for asylum, including a false accusation of rape. And, this week, she filed a civil damages suit against Strauss-Kahn.

To my knowledge, relatively little has been written about what criteria are to be used in the crucial decision of whether to prosecute. The American Bar Association Standards for Discretion in the Charging Decision (Standard 3-3.9), which to me are surprisingly far from clear, state that a prosecutor has considerable discretion in the charging decision and, indeed, case law strongly supports that. The Standards say that a prosecutor should not pursue a case unless the charges are supported by probable cause or sufficient admissible evidence to support a conviction, but do not preclude a prosecutor from pursuing a case in which he or she has a reasonable (or even stronger) doubt about the guilt of the accused (although he or she "should not be compelled by his or her supervisor to prosecute a case in which he or she has a reasonable doubt"). Thus, it appears that under the ABA Standards, a prosecutor may pursue a case in which he or she does not believe beyond a reasonable doubt, or conceivably does not even believe, that the defendant is guilty. Similarly, the prosecutor may prosecute if he or she believes the case will likely result in an acquittal, as long as there is legally sufficient admissible evidence and probable cause to believe the defendant committed the crime.

The Standards state, impractically, that a prosecutor in making the charging decision should give "no weight" to any "personal or political advantages or disadvantages which might be involved." Additionally, the Standards state, a prosecutor should also give no weight to "a desire to enhance his or her record of convictions."

There certainly are legitimate reasons not to prosecute Strauss-Kahn. (There may well be others that have been privately revealed to the District Attorney.) The case against Strauss-Kahn, while it seems to allegedly involve clear evidence of sexual conduct between him and the complainant (whom he apparently had never met before) and some physical corroboration, essentially comes down to a "he says/she says" situation with respect to whether there was force or consent. Additionally, the complainant’s now-documented desire to seek personal gain (a desire quite common in cases in which there are deep-pocket defendants, but nonetheless always worrisome to prosecutors), and her alleged lies in her asylum application, especially the false rape accusation, make her an impeachable witness. On the other hand, her blemishes are not terribly different from those of other witnesses upon whose testimony juries have in New York City convicted defendants in sexual assault cases, the category of cases in which I find it most difficult to predict the outcome.

The decision whether to prosecute here is a difficult one. The unprecedented early provision of considerable Brady material by the prosecution leads one to suspect that it was a prelude for dismissal. The complainant's filing of the civil suit, obvious fodder for cross-examination, suggests that she (or her attorney) has given up on persuading the District Attorney to go forward. On the other hand, women’s groups and others have lately called for the District Attorney to prosecute the case.

Perhaps this is one of those cases which, as one senior New York County prosecutor told me some years ago, "need to be tried." Although I believe that a prosecutor should not pursue a case in which he or she has a reasonable doubt as to the defendant’s guilt, a higher criterion for going forward than the ABA Standards, I also believe there are some rare cases in which a prosecutor should perhaps pursue a case he expects to lose. An alleged organized crime boss, a suspected serial killer, or a suspected serial rapist might fall into this category.

I expect that the case will be dismissed, but not necessarily based on the permissible factors listed in the ABA Standards. Although I suspect that the prosecutors are convinced of Strauss-Kahn’s guilt, the case looks like a probable loser. And, the District Attorney -- who has received some bad press because of several recent losses of high-profile cases -- despite the ABA Standards prohibiting political considerations – cannot help but think of the political effect of another loss in this extremely high-profile case.